Cyclists are being warned to take extra care on the roads after the chairman of private hire company Addison Lee told thousands of his drivers that it's lawful for them to use London's bus lanes, when in fact it remains illegal.

There are widespread fears that, as well as presenting an increased risk to cyclists, this action will also delay hundreds of thousands of bus passengers if bus lanes are filled with private hire vehicles.

Addison Lee chairman John Griffin wrote to thousands of his drivers (see letter above) over the weekend, telling them he would reimburse them for fines incurred for driving in bus lanes.

UPDATE: Thursday 26 April: The High Court ruled today that it remains illegal for Addison Lee cars to use bus lanes.

The company has been forced to remove the message to drivers from their website and the indemnity offering to pay for fines is "void and uneforceable", it cannot be repeated.

Despite that they will be allowed to re-imburse drivers in the future - but are not allowed to promise to do so - that would be encouraging law breaking.

Both sides are claiming victory. TfL say Addison Lee cannot continue to tell driver to break the law. Addison Lee say they don't have to instruct drivers not to.

Transport for London had already responded swiftly saying any private hire drivers using bus lanes are likely to face personal criminal prosecution.

If there is a crash between a cyclist and a Addison Lee car in a bus lane the company could be liable. In the most serious cases they and their directors could face prosecution for negligence.

The response from TfL compares favourably with the last time hundreds of Addison Lee drivers flouted the law in 2010 when the Crown Prosecution Service decided to abandon 216 court summonses and 130 penalty fares given to the firm's drivers for illegally driving in the M4 bus lane.

The Coalition Government removed the M4 bus lane to show support for motorists, even though there arguments that the measure was just as likely to increase motorist journey times.

LCC's Mike Cavenett said, "It's a measure of the poor quality of cycling provision in the capital that many cyclists see the bus lane network as a safe haven, even though it's shared with buses, black taxis and motorcycles.

In encouraging his mini-cab drivers to take to bus lanes, Mr. Griffin has committed an offence under the Serious Crime Act 2007

Mr Griffin has stated that in his view his min-cabs should be able to drive in London bus lanes. He has urged that they do so despite this being illegal and has offered to "indemnify any fines or payments".

The law

The Serious Crime Act 2007 replaces the old law on incitement. Section 45 provides that:

“A person commits an offence if—

(a)he does an act capable of encouraging or assisting the commission of an offence; and

(b)he believes-

(i)that the offence will be committed; and

(ii)that his act will encourage or assist its commission.”

According to an April 16 Addison Lee website press release (http://www.addisonlee.com/press/read/560) Mr Griffin issued a letter “to Addison Lee’s 3,500 minicab drivers, instructing them to use the bus lanes. Addison Lee will indemnify its drivers from any fines or payments that result from this action”

This action is at least ‘capable’ of encouraging drivers to act in contravention of road traffic regulations and ignore traffic signs, which would amount to a criminal offence.

It is very clear that Mr Griffin intends (at least believes) that his drivers will act as he has instructed. This is evidenced from his offer of indemnity where his drivers are fined. To commit an offence under this Section, the offence encouraged need not actually be committed by anyone, so it is immaterial whether any Addison Lee drivers actually went on to commit the offence.

In sum, as a matter of law, Mr Griffin has committed an offence contrary to Section 45. Will he be prosecuted?

Prosecution policy

The Crown Prosecution Service must ask themselves two questions when they are making their decisions as to whether to prosecute an offence.

First, is there enough evidence against the defendant?

It is submitted that in this case the answer is surely in the affirmative. The comments made by Mr Griffin were published on Addison Lee’s website. Further, Mr Griffin has confirmed his comments and sought to defend them on policy grounds (which would not be a defence under the Act).

Second, is a prosecution required in the public interest?

Ensuring road traffic safety in London is of course in the public interest. So too therefore is prosecuting those who encourage contravention of road traffic regulations. Mr Griffin’s case is aggravated by his offer of financial incentive to those who follow his instructions. So concerned were Transport for London at Mr Griffin’s comments, they issued a press release stating “By issuing (the letter), Addison Lee risk… leave[ing] their staff liable to criminal prosecution.” Additionally there are concerns regarding the safety of other road users. Not least, cyclists who use bus lanes are at risk of being put at danger if bus lanes are used by traffic prohibited from using them.

I personally think that some roads should only be open to taxis, busses and car share schemes to discourage unsustainable car use and encourage alternative transport. However I do think that this can only really work if there are adequate cycle provisions, seperate lanes or well maintained alternative routes. However there is currently a poor offering on this front, and just trying to bully their way into bus lanes is not going to help anyone as the bus lanes will become just as congested as other lanes and then no form of transport on London roads will be particularly fast or safe.

It's a tiny point but I'm somehow particularly offended by the letter's poor grammar - "the current bus lane regulations" but then "it disciminates". It suggests flabby thinking - but then the letter's content does too.